[LACNIC/Politicas] An interesting article on the NRO letter

[Adrie Schmidt]

I have come across this article on recent NRO Letter written by a prominent Law professor. I think it may be of value to the community, please see below:

" The world's Regional Internet Registries (RIRs), coordinated by Number Resource Organization (NRO), manage the distribution of Internet Protocol (IP) addresses in five continents respectively. Although far less well known than domain names, IP addresses are also the critical resources essential to the proper function of the global internet. As the steward of the critical address resources, NRO and all the Regional Registries are highly respected technical organizations.

However, many people in the internet community are surprised, though not in a lovely way, by the NRO's public call requesting Mauritius government to intervene in a court case in which AFRINIC was sued by a company reportedly located in Hong Kong for a contractual dispute. AFRINIC is the RIR for Africa, established in 2004 and headquartered in Ebene, Mauritius. Since the case involves the complicated legal and internet governance issues during a long period of time, the merit and procedure of the case cannot be elaborated in such a short piece. But anyone, of course, has the right to comment or opine on the case and may well have the different propositions or preferences.

But the NRO's Open Letter dated July 12, 2022 to Mauritius Foreign Minister and Attorney General uncommonly requests the government take action against the on-going court proceeding in a country with "stable and consistent legal system." Should the NRO's request be successful, Mauritius would hardly be able to maintain her "stable and consistent legal system" simply because judicial independence, the cornerstone of rule of law, would be subverted.

Since AFRINIC deliberately chose "Mauritius as the most appropriate place to host this fundamental role for the regional Internet", it shall comply with the laws and court orders of that country. The NRO's belief that preservation and protection of "the independence of AFRINIC" be only achieved through repudiating Mauritius legal system that actually "benefit" AFRINIC is entirely paradoxical.

The contractual dispute is a civil dispute in nature. The NRO's blames on both the "abusive" litigation and Mauritius court orders (such as the interim measure to freeze the AFRINIC's bank account) should be able to be reviewed or resolved within the legal system of Mauritius. Instead of keeping any faith in the "stable and consistent legal system" from which AFRINIC chose to reside in order to obtain the benefit, the NRO's resort to the government powers to influence or control the court proceeding seems arbitrary, cynical and a bit arrogant to a sovereignty state. Doing so is of little help to AFRINIC that is subject to the territorial jurisdiction of Mauritius. Doesn't NRO consider that its proactive Letter could make AFRINIC less welcome in local host country?

More interestingly, the NRO requests in the letter that the AFRINIC be recognized from Mauritius "as an international organization." Actually, what's requested by the NRO is the legal immunity granted to the legal status of an international organization. However, only Intergovernmental Organizations (IGOs) created through multilateral international treaties, like the UN based in New York or World Trade Organization (WTO) based in Geneva, are entitled to the legal status of privileges or immunities based upon the respective founding charters or treaties. AFRINIC, as stated at www.afrinic.net, is a nonprofit and member-based organization registered and operating under the Corporate Legal Frameworks of Mauritius. Irrespective of the NRO's call to recognize AFRINIC as an international organization "as rapidly as possible", obviously, no such international treaty exists at the moment. Before requesting for AFRINIC's legal status of an international organization, the international treaty that can support the NRO's request has to be concluded. Notwithstanding AFRINIC's importance to Africa, including but not limited to providing the services to internet operators, fostering digital culture throughout the region, and supporting regional digital economy, it will inevitably take years for African countries to convene, negotiate and reach an agreement on the treaty for AFRINIC. Actually, very few internet organizations transform into treaty organizations. Most of them remain non-governmental nonprofit organizations. For example, both the Internet Corporation for Assigned Names and Numbers and Internet Engineering Task Force, two most influential global internet organizations, are incorporated under the American laws without any treaty immunity status. Although the pros and cons about the so-called "UN model" has been hotly debated for a couple of years, technical community is largely not keen of transforming into treaty organizations for a variety of reasons. The NRO's request that AFRINIC be recognized as an IGO is an eyebrow-raising move to the internet technical community.

Alternatively, Mauritius legislature may extraordinarily enact a special law to grant the legal immunity for AFRINIC. If NRO calls for this approach, it is ironical that the call was made to the Foreign Minister and Attorney General, none of whom has the legislative powers.

By all means, transformation of AFRINIC into an international organization either through an international treaty or a special Mauritius law deserves strategic thinking and planning, not just for convenience.

Further, should AFRINIC obtain the legal immunity of an international organization, such legal status generally shouldn't be applied retrospectively. In an unlikely scenario that Mauritius government did address this issue "as rapidly as possible" as urged by NRO, it is still highly contentious why AFRINIC should be allowed to resort to the newly-gained legal immunity in the preexisting legal proceeding of a contractual dispute. Since non-retrospective is the commonly-recognized legal principle in the world, NRO's request for AFRINIC's international organization status, no matter successful or not, is unlikely to have any effect on the current court case.

Although internet technical organizations origined from North America and Europe, they now commit to function as the steward of critical internet resources in the global public interests.  They should keep in mind that mutual respect and trust between the internet organizations and sovereign states in the Global South are very important to the stable operation and development of the internet. NRO's Open Letter not only shows little understanding of the real legal issues in the proceeding but the striking sense of superiority in the post-colonist world. If NRO really wants to ensure AFRINIC "to remain accountable and subject to Mauritian laws", it should contribute to resolve the dispute, not to cause collateral damage."

(The author is a professor of law with the Beijing Normal University.)

https://www.globaltimes.cn/page/202207/1271059.shtml